TO BE PUBLISHED
July 20, 1994
IN RE: Marlene R. Lawson/Kentucky State Police
OPEN RECORDS DECISION
Ms. Marlene R. Lawson, News Editor for The Sentinel, challenges the actions of the Kentucky State Police relative to her June 2, 1994, request for a copy of a criminal case file concerning Patrick Abshire. At the time of her request, Ms. Lawson asked for a waiver of "search and copying fees . . . [as] a representative of the news media." Ms. Lawson's request for records was granted on June 3, and the records mailed to her. The State Police refused to waive copying and postage charges, and assessed a fee of $14.10.
Ms. Lawson objects to the State Police's refusal to waive copying and postage charges for representatives of the news media. She asserts that "[t]he content of the report may prove vital to local government and subsequently to the local public." She asks that this Office issue a decision determining whether her request for waiver of fees was properly denied. For the reasons set forth below, we conclude that the actions of the Kentucky State Police were entirely consistent with the Kentucky Open Records Law.
KRS 61.874(2) authorizes public agencies to "prescribe a reasonable fee for making copies of public records which shall not exceed the actual cost not including the cost of staff required." If the requester resides outside the county in which the records are located, if he or she precisely describes the records, and if the records are "readily available" within the public agency, the agency must mail copies of the records upon request. The agency may, however, require advance payment of the prescribed fee, including postage. KRS 61.874(1). These statutes contain no provision for the waiver of such fees for representatives of the media.
In general, the media "has only such right of access to public records as the general public has." OAG 79-582, p. 1. Simply stated, all persons have the same standing to inspect and receive copies of public records, and are subject to the same obligations for receipt thereof OAG 79-546; OAG 79-582; OAG 80-641; OAG 82-394; OAG 89-86; OAG 91-129; 92-ORD-1136. Accordingly, the Kentucky State Police's refusal to waive the copying charge was proper.
On July 15, 1994, a series of amendments to the Open Records Law took effect. One of these amendments radically overhauls the provisions of the law pertaining to copying fees. Thenceforward, the purpose for which a requester seeks access to records may be factored into the fee equation. Pursuant to KRS 61.874(3):
The public agency may prescribe a reasonable fee for making copies of nonexempt public records requested for use for noncommercial purposes which shall not exceed the actual cost of reproduction, including the costs of the media and any mechanical processing cost incurred by the public agency, but not including the cost of staff required. If a public agency is asked to produce a record in a nonstandardized format, or to tailor the format to meet the request of an individual or a group, the public agency may at its discretion provide the requested format and recover staff costs as well as any actual costs incurred.
If, on the other hand, nonexempt public records are requested for commercial purposes, the public agency may establish a reasonable fee based on one or both of the following:
1. Cost to the public agency of media, mechanical processing, and staff
required to produce a copy of the public record or records;
2. Cost to the public agency of the creation, purchase, or other acquisition of the public records.
KRS 61.874(4)(c)(1) and (2). Media requests are treated as noncommercial requests for purposes of determining which fee structure should be applied. KRS 61.870(4)(b)(1) and (2). There is, however, no provision for the waiver of fees for representatives of the media under the amended Open Records Law.
It is therefore the opinion of this Office that the Kentucky State Police properly denied Ms. Lawson's request for waiver of the copying charge for public records. Ms. Lawson may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
Ms. Diana Smith
Kentucky State Police Headquarters
919 Versailles Road
Frankfort, KY 40601
Ms. Marlene R. Lawson
1558 Hill St.
Radcliff, KY 40160